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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

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