United States: Cybersecurity Information Sharing Act Signed Into US Law As Part Of Omnibus Appropriations Legislation

On December 18, 2015, President Obama signed the Consolidated Appropriations Act, 2016 into law. This omnibus appropriations legislation will create significant new rules for the voluntary sharing of cybersecurity information within the private sector and with the government. Passage of the omnibus appropriations legislation thus brings to a close the multi-year debate over cybersecurity information sharing legislation and opens a new implementation period for information sharing programs both in the government and the private sector.

The Cybersecurity Information Sharing Act of 2015 (CISA) appears as the first title of Division N of the omnibus appropriations legislation. It is intended to encourage private-sector companies to share cybersecurity threat information voluntarily with the federal government and within their own industries, and to enhance federal government information sharing with the private sector.

CISA provides three key authorizations for the sharing and use of cybersecurity threat information by the private sector. First, CISA authorizes a "private entity" to monitor its information systems (as well as the systems of others that have provided written consent to that entity) for "cybersecurity purposes." Second, CISA authorizes a private entity to "operate a defensive measure" that is applied to "an information system of such private entity in order to protect the rights or property of the private entity" (as well as the systems of others that have provided consent to that private entity). Third, CISA permits a "non-Federal entity" to "share with, or receive from, any other non-Federal entity or the Federal Government a cyber threat indicator or defensive measure" for "a cybersecurity purpose and consistent with the protection of classified information."

CISA includes several incentives for private sector information sharing. For example, the law provides that it shall not be considered a violation of the antitrust laws for two or more "private entities to exchange or provide a cyber threat indicator or defensive measure, or assistance relating to the prevention, investigation, or mitigation of a cybersecurity threat, for cybersecurity purposes." CISA also provides liability protections to any private entity for monitoring of an information system in accordance with the act and for "the sharing or receipt of a cyber threat indicator or defensive measure" in accordance with the act. (With respect to sharing information with the federal government, the liability protections attach only if the private entity shares information through the Department of Homeland Security (DHS), as discussed below, rather than with other federal agencies). The legislation also specifies that it does not create "a duty to share" a cyber threat indicator or defensive measure nor does it create "a duty to warn or act" based on the receipt of such information.

In addition, CISA is intended to protect cyber threat indicators and defensive measures shared with the federal government by private sector entities in four ways: (i) by providing that such provision "shall not constitute a waiver of any applicable privilege or protection provided by law, including trade secret protection"; (ii) by treating such information as the "commercial, financial, and proprietary information" of the sharing entity when so designated; (iii) by exempting such information from disclosure under the Freedom of Information Act; and (iv) by exempting such information from any agency rule or judicial doctrine regarding ex parte communications.

CISA requires the Secretary of Homeland Security, in conjunction with other agency heads, to develop, within 90 days of the legislation's enactment, "a capability and process within [DHS]" to accept "from any non-Federal entity in real time cyber threat indicators and defensive measures." In addition, CISA requires the Attorney General and the Secretary of Homeland Security, in consultation with other relevant agency heads, to develop, within 60 days of enactment, "interim policies and procedures relating to the receipt of cyber threat indicators and defensive measures by the Federal Government." These policies and procedures must be finalized not later than 180 days after enactment. These policies and procedures generally must require automated sharing of threat information with all appropriate federal entities, audit capabilities, and sanctions for federal "officers, employees, or agents who knowingly and willfully conduct activities under this title in an unauthorized manner." The Attorney General and the Secretary of Homeland Security also must develop and publish, within 60 days of enactment, "guidance to assist entities and promote sharing of cyber threat indicators with Federal entities" pursuant to CISA.

Cyber threat indicators and defensive measures provided to the federal government under CISA may be shared within the executive branch only for cybersecurity purposes, or for certain specific law enforcement and national security purposes. Moreover, while such shared information may not be used by federal, state or local government "to regulate, including an enforcement action, the lawful activities" of a private entity, it may be used "to inform the development or implementation of regulations" consistent with "regulatory authority specifically relating to the prevention or mitigation of cybersecurity threats to information systems."

CISA also directs the federal government to expand its sharing of cyber threat indicators and defensive measures with the private sector. The legislation instructs the Director of National Intelligence, the Secretary of Homeland Security, the Secretary of Defense and the Attorney General, in consultation with other appropriate agency heads, to develop procedures to facilitate and promote the federal government's timely sharing of cyber threat indicators and defensive measures. This includes the dissemination of classified threat indicators and defensive measures to private-sector entities that have the necessary security clearances.

The legislation calls for the government to have real-time information sharing capabilities, and encourages the government to leverage existing entities, such as sector-specific information sharing and analysis centers. It also requires the relevant agencies to facilitate the creation of cybersecurity best practices, on a periodic basis, "with attention to accessibility and implementation challenges faced by small business concerns."

The law also includes several measures intended to protect privacy and civil liberties. For example, the Attorney General and the Secretary of Homeland Security are required to create guidelines that "limit the receipt, retention, use, and dissemination of cyber threat indicators that contain personal information of specific individuals or information that identifies specific individuals." CISA also requires both private entities and the federal government to take certain steps to remove information from any shared cyber threat indicator that the entity "knows at the time of sharing" to be personal information of a specific individual that is not "directly related to a cybersecurity threat." Furthermore, these guidelines must "include procedures for notifying, in a timely manner, any United States person whose personal information" has been shared in violation of CISA. The law also requires reports examining, among other things, the "sufficiency" of privacy guidelines required by the legislation, and the "actions taken by the Federal Government to remove personal information from cyber threat indicators or defensive measures."

The larger Cybersecurity Act of 2015, of which CISA is the first title, includes a range of other cybersecurity provisions. The second and third titles, respectively, are intended to enhance the federal government's cybersecurity capabilities and posture, and to provide for an assessment of the federal cybersecurity workforce. The fourth title's various requirements include the creation of: a new cybersecurity task force in the healthcare industry; an annual report on international cyber criminals; a study of the cybersecurity of mobile devices used by the federal government; recommendations on "security and resilience measures" for networks that support state emergency responders; and Inspector General reports on the cybersecurity of agencies that maintain national security systems or computers systems that "provide[] access to personally identifiable information." The Cybersecurity Act of 2015 also amends the criminal provision governing the fraudulent sale of access devices (e.g., credit card numbers) so that it applies to those "issued, owned, managed, or controlled by a financial institution, account issuer, credit card system member, or other entity organized" in the United States, irrespective whether the offender "stores, secrets, or holds" articles used to commit the offense or proceeds from the offense within the United States.

President Obama previously has taken executive action to expand cybersecurity information sharing and has pressed for information sharing legislation. For example, in a previous Statement of Administration Policy regarding the Senate version of CISA that passed in October of this year, the administration reiterated that "[a]n important building block for improving the Nation's cybersecurity is ensuring that private entities can collaborate to share timely cyber threat information with each other and the Federal Government." With the omnibus appropriations bill signed into law, the Administration's focus now will turn to implementing CISA and encouraging effective information sharing within the private sector, and between the private sector and the government.

Originally published 21 December 2015

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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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