United States: Potential Risks And Rewards Of Cybersecurity Information Sharing Under CISA

Last Updated: July 26 2016
Article by Peter Carey, Keith M. Gerver, Joseph V. Moreno and Emily J. Rockwood

Most Read Contributor in United States, September 2017

When President Obama signed into law the Cybersecurity Act of 2015, which was designed to facilitate information sharing on cybersecurity threats between the public and private sectors, proponents hailed it as "our best chance yet to help address this economic and national security priority in a meaningful way."1  Others – including some of the biggest players in the technology industry – decried it as "a thinly disguised surveillance provision," and something to be avoided pending further information on how it would be implemented.  Interim guidance issued earlier this year by the Office of the Director of National Intelligence, the Department of Homeland Security, the Department of Defense, and the Department of Justice, lacked many of the details that industry insiders were waiting for.2  Now, with final guidance having been issued (the "Final Guidance"), in-house counsel have more insight into the potential risks and rewards that await companies who opt to participate in the information sharing program, and can advise management and their boards of directors accordingly.3

I. CISA's Cybersecurity Information Sharing Program

Title I of the Cybersecurity Act of 2015, referred to as the Cybersecurity Information Sharing Act ("CISA"), created a framework to facilitate the sharing of information on cybersecurity threats between the federal government and the private sector.  Under that framework, companies who are the victim of cyber-attacks (whether successful or unsuccessful) are encouraged to voluntarily report them to the Department of Homeland Security ("DHS").  In exchange, participants qualify to receive real-time alerts from federal, state, local and international intelligence and law enforcement agencies and other private sector companies who have been the targets of attacks, as well as information and best practices about defensive measures taken.  So long as the sharing is made in accordance with CISA's requirements, participants qualify for protection against civil and other liability that may otherwise apply to the release of such information.

CISA, together with the Final Guidance, lays out the framework for private sector companies interested in sharing cybersecurity information.

A. Must Support a Cybersecurity Purpose. CISA only applies to information shared for a "cybersecurity purpose," meaning for the purpose of protecting an information system or information that is stored on, processed by, or transiting an information system from a cybersecurity threat or security vulnerability.4  CISA does not pre-empt or substitute for any other legal, regulatory, or contractual obligations among parties, or between private sector companies and law enforcement.  Sharing of information for any other reason is governed by other legal authorities.

B. Only Certain Categories of Information are Eligible. CISA provides for two categories of information that may be shared.

(1) Cyber Threat Indicators – The Final Guidance provides several examples of cyber threat indicators, including identifying information about the sender of a phishing email, internet protocol addresses associated with suspicious or malicious activity (e.g., denial of service attacks, malicious reconnaissance efforts), methods by which security vulnerabilities are revealed (e.g., by software publishers and security researchers), and types of files successfully exfiltrated in a computer intrusion. CISA defines "cyber threat indicator" to include information that is necessary to describe or identify any of the following:

  • malicious reconnaissance, including anomalous patterns of communications that appear to be transmitted for the purpose of gathering technical information related to a cybersecurity threat or security vulnerability;
  • a method of defeating a security control or exploitation of a security vulnerability;
  • a security vulnerability, including anomalous activity that appears to indicate the existence of a security vulnerability;
  • a method of causing a user with legitimate access to an information system or information that is stored on, processed by, or transiting an information system to unwittingly enable the defeat of a security control or exploitation of a security vulnerability;
  • malicious cyber command and control; or
  • the actual or potential harm caused by an incident, including a description of the information exfiltrated as a result of a particular cybersecurity threat.

(2) Defensive Measures – These include an action, device, procedure, signature, technique, or other measure that detects, prevents, or mitigates a known or suspected cybersecurity threat or security vulnerability. Examples from the Final Guidance include programs that are able to identify certain malicious activity, firewall rules that successfully block certain internet traffic, and techniques for screening incoming email traffic for suspicious content.

C. Personally Identifiable Information Must be Removed. Information shared pursuant to CISA must not include personal information of a specific individual or personally identifiable information ("PII") if that information is not directly related to a cybersecurity threat.  This means that, prior to sharing information, participants must remove information that it knows at the time to be personal information of a specific individual, or information that identifies a specific individual, the sharing of which is not necessary to communicate the cybersecurity threat.  While the Final Guidance does not define PII, it provides several exemplar categories including:

  • Protected Health Information – This includes individually identifiable health information, including demographic information, that relates to an individual's physical or mental health or condition, the provision of health care, and the past, present, or future payment for health care (g., medical records, lab reports, hospital bills).
  • Human Resource Information – This includes information contained within an employee's personnel file, such as hiring decisions, performance reviews, and disciplinary actions.
  • Consumer Information/History – This consists of information related to an individual's purchases, preferences, complaints and credit.
  • Education History – This relates to an individual's education, such as transcripts, or training, such as professional certifications.
  • Financial Information – This broad category includes bank statements, loan information, credit reports and other highly sensitive information related to banking, investment and insurance products and services.
  • Information Regarding Property Ownership – This includes certain identifying information about property ownership that is protected by privacy laws and not otherwise publicly available.
  • Information Regarding Minor Children – This includes certain identifying information of children under the age of 13.

D. Information Must be Shared via a DHS-Sanctioned Method. CISA protections will only apply to cybersecurity information shared pursuant to a DHS-sanctioned method, which currently includes:5

(1) Automated Indicator Sharing ("AIS") – The AIS initiative is designed to be the primary mechanism by which private sector companies will share information with DHS. Once a company enrolls and executes the AIS Terms of Use, it may submit cyber threat information using a specialized software program called a Trusted Automated eXchange of Indicator Information.  There is no cost to sign up for AIS, and a sharer's identity may be withheld from other AIS participants if preferred.  Companies that enroll in AIS will receive real-time information on cyber threat indicators and defensive measures provided by other entities that participate.  The program is open to private sector participants as well as state, local, tribal and territorial governments, foreign governments and foreign private sector entities.  Additional details about the AIS initiative are available at https://www.us-cert.gov/ais.

(2) Web Form Submissions – Participants may share information via a form on the DHS's National Cybersecurity and Communications Integration Center ("NCCIC") website. Additional information about NCCIC is available at https://www.us-cert.gov/nccic.

(3) Email Submissions – Participants may share information with the NCCIC via email.

(4) Indirect Sharing – Companies may share information indirectly through Information Sharing and Analysis Centers ("ISACs") or Information Sharing and Analysis Organizations ("ISAOs"), which are private sector entities that then relay the information to DHS. However, the specific protections that apply will depend on whether the ISAC or ISAO complied with CISA's sharing requirements.

II. Benefits and Protections

The primary benefit for companies considering participation in CISA's cybersecurity information sharing program – and in particular those that enroll in the AIS initiative – is the real-time receipt of cyber threat information provided by other participants.  The more companies that enroll and actively participate, the faster and more efficiently cybersecurity threats can be identified and successful defensive measures and best practices can be shared.  In addition, private sector companies will benefit from the resources of federal, state, local, and international intelligence and law enforcement agencies who also participate.  Proponents hope that as more government resources are dedicated to the program, it could develop a critical mass of participation and further improve the program's usefulness to all involved.  Ideally, it will result in all data and systems being more secure and less prone to cyber-attacks.

Provided that information is shared in accordance with its framework, CISA provides protections against various liabilities that may otherwise attach to the release of information to law enforcement agencies and private sector companies.  CISA provides targeted liability protection for participants, stating that "[n]o cause of action shall lie or be maintained in any court against any private entity, and such action shall be promptly dismissed" with respect to sharing of information with DHS.  In addition, CISA provides additional statutory protections including:

  • Antitrust Exemption – CISA provides a statutory exemption to federal antitrust laws for the sharing of cybersecurity information between and among private entities.
  • Open Records Exception – Shared information is exempt from disclosure under the Freedom of Information Act, and other federal state, tribal, or local open government, open meetings, open records, and sunshine laws.
  • Enforcement Limitation – Shared information cannot be used by any federal, state, tribal, or local government as the basis of a regulatory or enforcement action against the participant.
  • No Privilege Waiver – Sharing information does not constitute the waiver of any applicable legal privilege or protection, nor does it surrender trade secret protections.
  • Treatment of Commercial, Financial, and Proprietary Information – When so designated by the participant, shared information will be treated as commercial, financial, and proprietary information.
  • Ex Parte Communications Waiver – Sharing information will not be subject to the rules of any federal agency or department or any judicial doctrine regarding ex parte communications with a decision-making official related to the Administrative Procedure Act.

III. Risks and Compliance Obligations

Companies considering participation in DHS's cybersecurity information sharing program must note that the liability and other statutory protections only apply if all the sharing requirements under CISA are complied with.  For most participants, the most onerous requirement will be that of identifying and removing PII from any cybersecurity information prior to submission via the AIS program or other permitted methods.  While some companies may be able to automatically tag PII for extraction prior to submission, for many it will no doubt require a manual effort.  Inadvertent sharing of PII may result in the loss of liability and other protections under CISA, violations of federal, state and local privacy laws, and possibly the obligation to inform individuals that their information has been disclosed.

In addition, many of the protections provided by CISA are both untested and limited.  For example, the liability and statutory protections apply only to U.S. litigants and regulators, so participants who share cybersecurity information with the DHS may wind up with litigation, regulatory, and enforcement exposure overseas.  Despite the various protections, participants must still consider the risk that confidential business information and intellectual property shared through the program is improperly used by competitors and others.  Companies may also need to address any contractual barriers to sharing confidential business information, as well as any disclosure obligations to investors, clients, or customers.

Companies should also note that while CISA provides protections against legal liability for properly sharing cyber-attack information with DHS, it does not protect against liability for a data breach itself.  An issue to consider is whether reporting cyber threat indicators and defensive measures establishes knowledge of threats and, in the event of an actual breach, failure to address such risks could form the basis for civil liability.  Companies should also consider whether cyber threat information shared with DHS rises to the level of a material risk that would trigger public disclosure requirements.

IV. Conclusion

As a threshold matter, companies must consider whether the benefit of receiving real-time notifications of cyber threat indicators and defensive measures outweighs the various risks and burdens of CISA compliance.  For some, participation with DHS in what may come to be viewed as an essential effort in the fight against cyber-attacks may bring a degree of goodwill that outweighs the potential liabilities.  For others who view their cybersecurity program as a competitive advantage, they may determine that sharing defensive measures in particular has little benefit.  In addition, early adoption may result in limited benefits until the program reaches critical mass in terms of private and public sector participation.  Either way, with publication of the Final Guidance, companies can now make a more informed decision as to whether to participate in CISA's cybersecurity information sharing program.


1. See generally Ken Wainstein, Keith Gerver & Peter Carey, "President Obama Signs Cybersecurity Act of 2015 to Encourage Cybersecurity Information Sharing," (Dec. 24, 2015), http://www.cadwalader.com/resources/clients-friends-memos/president-obama-signs-cybersecurity-act-of-2015-to-encourage-cybersecurity-information-sharing (quoting Press Release, U.S. Chamber of Commerce, U.S. Chamber President Comments on Omnibus Spending Bill (Dec. 16, 2015), https://www.uschamber.com/press-release/us-chamber-president-comments-omnibus-spending-bill; Jenna McLaughlin, Hasty, Fearful Passage of Cybersecurity Bill Recalls Patriot Act, The Intercept (Dec. 19, 2015), https://theintercept.com/2015/12/19/hasty-fearful-passage-of-cybersecurity-bill-recalls-patriot-act/).

2. See Sharing of Cyber Threat Indicators and Defensive Measures by the Federal Government under the Cybersecurity Information Sharing Act of 2015 (Feb. 16, 2016), https://www.us-cert.gov/sites/default/files/ais_files/Federal_Government_Sharing_Guidance_%28103%29.pdf.

3. On June 15, 2016, the Department of Homeland Security and the Department of Justice issued the Final Guidance intended to assist the private sector: Guidance to Assist Non-Federal Entities to Share Cyber Threat Indicators and Defensive Measures with Federal Entities under the Cybersecurity Information Sharing Act of 2015 (https://www.us-cert.gov/sites/default/files/ais_files/Non-Federal_Entity_Sharing_Guidance_%28Sec%20105%28a%29%29.pdf).  Two related documents released the same day provide guidance to federal government entities: (1) Final Procedures Related to the Receipt of Cyber Threat Indicators and Defensive Measures by the Federal Government (https://www.us-cert.gov/sites/default/files/ais_files/Operational_Procedures_%28105%28a%29%29.pdf); and (2) Privacy and Civil Liberties Final Guidelines: Cybersecurity Information Sharing Act of 2015 (https://www.us-cert.gov/sites/default/files/ais_files/Privacy_and_Civil_Liberties_Guidelines_%28Sec%20105%28b%29%29.pdf).

4. "Cybersecurity threat" is broadly defined to include an action on or through an information system that may result in an unauthorized effort to adversely impact the security, availability, confidentiality, or integrity of an information system.

5. The Final Guidance provides that information shared with DHS via other means, including certain systems established prior to the passage of CISA, may also qualify for liability and other protections.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

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.


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.


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 by clicking here .

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.


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.


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.


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.


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.